A Tale of Two Treaties

Big(ish) copyright news out of Canada and Mexico that serves as a timely reminder of the central role of trade negotiations in promoting harmonized intellectual property laws. Canadian and European trade negotiators are apparently closing in on a comprehensive economic and trade agreement, which will include intellectual-property provisions. Michael Geist reports that negotiators remained stymied on the agreement’s IP chapter, including copyright-enforcement provisions that the Europeans would like to model on the Anti-Counterfeiting Trade Agreement (ACTA). Any changes will require legislative amendments.

The lack of progress on IP is not surprising. For an IP importer like Canada, increased protection and enforcement costs represent a pretty unambiguous drain on the Canadian economy and will likely result in higher prices, as the European Union itself concluded in a study on the potential effects of a Canada-EU trade agreement:

The Canadian trade balance would not necessarily benefit from IP provisions in CETA. Trade in specific goods, that are currently freely marketed and exported from Canada, could be adversely affected. For example, several Canadian companies brand and export their products with labels that could be considered as European geographical indications. These companies could lose market shares in domestic and foreign markets if they are forced to abandon their commercially significant labels. Conversely, it is unlikely that Canadian companies would significantly benefit from an increased protection of geographical indications in the European market. In sum, both Canadian exports and imports might be slightly and negatively impacted, but only in specific sectors.

The flip side of this is that Canadian negotiators may simply decide to trade off a bad deal on IP in exchange for perceived trade gains elsewhere. Given the way copyright has become politicized since the first time the Conservatives tried introducing a copyright-reform bill, this is a somewhat risky proposition. Then again, having a majority government makes passing such an agreement much, much, much easier than it would’ve been under a minority government.

The news from Canada makes what’s happening in Mexico even more interesting. While Canada is inching toward ACTA implementation, the Mexican Senate voted on July 20 not to ratify the ACTA (document is in Spanish, but there’s always Google Translate). Reasons cited include concerns about the lack of information provided to the Senate during the negotiations (illegal under Mexican law), the lack of due process under ACTA and the cost of requiring ISPs to monitor and enforce copyright infringement in a way that’s currently illegal under Mexican law and the Constitution, as well as other issues like net neutrality, censorship and privacy concerns. They also raise the concern that ACTA could lead to restrict both freedom and Internet usage, potentially broadening the “digital divide” and restricting the introduction of beneficial new technologies that would support the development of the information society (a key Mexican development goal).

As I noted earlier, many of these findings support the view that the Mexican telecommunications industry is making its voice heard, and that concerns about economic development have trumped the previously dominant view in the Mexican Senate regarding the need to increase copyright protection.

So, for the time being, anyway, ACTA is a dead letter in Mexico. (Though it could come back.)

The different approaches of the two countries serves as yet another reminder of the effectiveness of using trade agreements to force copyright reform in partner countries (next example: the Trans-Pacific Partnership talks, whose IP aspects have been described as "ACTA the sequel", only with a WTO-like enforcement mechanism). At the same time, however, Mexico’s current debate suggests the limit of this strategy. In situations where market access doesn’t exist as an incentive and where the domestic politics do not favour reform, it is much harder for one country to reform another’s copyright laws.

In other words, the Canada-EU trade talks allow the EU to link something Canada wants (market access) to something that the EU wants (Canadian IP reform along EU- and ACTA-friendly lines). Even though such reforms are not on their own beneficial to Canada for the reasons the EU report suggests above, there’s a pretty good chance they’ll happen, the result of a trade-off needed to get an agreement done.

In Mexico, no such linkage is happening, although it is part of the Trans-Pacific Partnership talks, along with the United States (Canada is not). And so ACTA is rejected, the victim of the mobilization of domestic constituencies.

Which brings us to the big question. Most major countries now have relatively open access to each other’s markets, so market-access is less of a problem for most countries than it was even two decades ago. Copyright laws, meanwhile, are regularly undermined by things like technological change. In a world where the IP powers can’t offer countries improved market access, but where they still want stronger copyright protection, how likely is continued copyright harmonization? If we want to predict the future, do we look to Mexico’s rejection of ACTA, or to the Canada-EU trade talks? Maybe I'm underestimating the appetite for more trade agreements?

The Mexican vote against ACTA: A pretty big deal

I don’t know what the Mexican Congress’ formal call for the Mexican Executive not to sign the Anti Counterfeiting Trade Agreement means for the future of ACTA in Mexico (Techdirt story here). However, it does seem to mark a sea change in Mexico’s treatment of copyright in general. As I discuss in my dissertation, in 2003 a nearly unanimous Congress extended the term of copyright to a world-leading life of the author plus one hundred years with only a cursory debate. Going from reflexively approving a huge strengthening in copyright law to calling for the rejection of the latest attempt to strengthen said law: that’s a pretty big change.

What’s going on? Based on my dissertation field work, two things, I think. First, the telecoms are pretty strong politically and economically in Mexico, and I’m pretty sure their goal is to minimize ACTA’s burden on their bottom line (ACTA being driven by the content industries and all). As I've noted elsewhere, even though telecoms were largely excluded from what were secret content-industry-driven negotiations, they are too powerful not to have a say when it comes time to actually implement ACTA into domestic law.

Second, and most interesting, the traditional rhetorical argument for stronger copyright in Mexico – that it’s needed to support the national culture – is running up against an equally powerful narrative: the need for economic development. Mexico’s current National Development Plan emphasizes the need for improved broadband penetration. Along those lines, COFETEL, Mexico’s telecoms regulator, the rough equivalent to the CRTC here in Canada, argued back in November that ACTA could worsen the digital divide. Its view was supported by the Senator Carlos Sotelo of the left-leaning Party of the Democratic Revolution (PRD). He said that Mexico needs a balanced copyright law that guarantees a universal right of broadband access.

As well, Senator María Beatriz Zavala Peniche of the centre-right National Action Party (PAN) emphasized that copyright law should support individuals’ rights to the dissemination of knowledge and the sharing of culture.

So what we have here are a powerful economic interest group (the telecoms) and a potent counter-narrative (economic development). Anyone interested in copyright reform should be paying very close attention to Mexico. It will be very interesting to see the extent to which this copyright-versus-development narrative takes hold, both in Mexico and abroad.

Copyright infringement and high prices

Just a quick note to highlight the release of a new study, Media Piracy in Developing Countries. One of its main points seems to be that copyright infringement in these countries is largely driven by the high (monopoly) prices that companies charge for their wares in countries like Mexico, where almost half the population lives below the poverty line. I've only read the introduction and the Mexican case study (which has lots of good information on the Mexican informal sector in general and Tepito in particular), but seeing as just this morning I was hoping for more copyright scholarship focused on empirical issues, I can't wait to read the rest of the report. I'll even forgive their use of the word "piracy" in their title.

For the record, its case studies are South Africa, Russia, Brazil, Mexico, Bolivia and India. They also have a few chapters focused on more big-picture issues.

It also strikes me that the report, which was funded in part by Canada's International Development Research Council, is focused on the big picture:

we see little connection between these enforcement discussions [around copyright] and the larger problem of how to foster rich, accessible, legal cultural markets in developing countries—the problem that motivates much of our work.

This is exactly what we need: a greater focus on spurring cultural production, an openness to different ways of doing so, and less of a focus on copyright as an end unto itself.

Mexico copyright reform: Well, that was quick

Way back in November I blogged about the Coalición por el Acceso Legal a la Cultura (Coalition for Legal Access to Culture), which brought together industry and artists’ groups (actually, collection societies representing artists and various unions), the two big groups in Mexican copyright policy, to push for stronger copyright laws. I argued that this was a big deal, akin to labour and business groups getting together to argue joint positions on economic policy. While such cooperation and agreement among groups is not unusual in other countries, I was surprised by the extent to which the two sides, representing both foreign and domestic interests, seem to have fused their positions. With Mexican copyright’s two main stakeholders agreeing to try to agree, it seemed like stronger Mexican copyright laws were a good bet.

The coalition’s big demand was for authorities to be granted ex officio authority, that is, the right to make copyright-related arrests without waiting for a complaint from the party who’s copyright has been alleged to be violated. This, of course, would make it much easier and less expensive (that is, for the copyright owner) to actually enforce copyright.

Well, Alejandro at Bitácora de Darkness passes along the news that the Mexican Congress has approved amendments to Mexican copyright and intellectual property laws, as well as the Mexican penal code, to do just that, as well as increasing the fines for which violators are liable (El Universal story here). The reforms also (this is interesting) target consumers who knowingly buy bootlegged goods.

Five quick thoughts:

1. It’ll be interesting to see if the government actually uses these new powers. As anyone who’s ever been to Mexico knows, informal markets selling bootlegged goods are everywhere. Cracking down on them has the potential to create social unrest because: a) they employ a not-insignificant number of people in a country that doesn’t have the greatest track record of producing jobs; b) market runners, thanks to political and police corruption, have some pull in how laws get enforced, and can thus cause trouble; and c) in a country where almost half of the population lives below the official poverty line, authorized CDs and DVDs are unaffordable for your average consumer.

There's also the tiny problem of where the money is going to come from to enforce these laws: last I checked, the Mexican government had its hands full dealing with a drug war and the fallout from the global economic crisis.

2. These amendments support my contention (which will feature prominently in my dissertation) that copyright has yet to become a political issue in Mexico. Or, at the very least, consumer and user groups continue to have little or no influence on the making of Mexican copyright policy.

3. The copyright industries and allied groups seem to have had the field to themselves, as it were, on this one. It will be interesting to see what will happen when Mexico gets around to implementing rules on ISP liability, which will involve them dealing with Mexico's telecommunications industry and, therefore, the richest man in the world. That’ll be quite the heavyweight fight. (I'll also be watching to see the extent to which academics and civil society groups get involved.)

4. On a related note, these reforms seem to be more concerned with today's problem -- physical bootlegging -- than with the online future (I'm not really sure how the amendments will affect things like peer-to-peer, for example, where the suppliers are as likely to be in Sweden as Tepito). That's another reason it'll be fascinating to see how Mexico decides to deal with ISP liability and other digital issues. In the long run, that's where the copyright action will be.

5. At the rate the situation is developing in Mexico, my Mexican dissertation case study will probably be out of date before I defend the damn thing. When it comes to copyright reform, obviously no one ever thinks of the lowly researcher.

ACTA: All Global Treaties are Local

A nice reminder, courtesy of Michael Geist , that the battle over the Anti-Counterfeiting Trade Agreement (ACTA) is going to get messier the more that groups directly affected by but excluded from the talks are heard and, most importantly, are listened to.

From Mexico: President of the Senate Commission on Science and Technology, Senator Francisco Javier Castellón Fonseca, is calling for increased transparency in ACTA talks in order to understand their potential impact on digital copyright issues generally and Internet Service Providers specifically.

This is important for three reasons.

1. Politically, Senator Castellón Fonseca, represents the left-leaning PRD, which can be expected to champion individuals’ user rights. The PRD has 127 out of 500 seats in the Chamber of Deputies and 26 out of 129 Senate seats. In Mexico currently there are no organized consumer or users’ groups dealing with copyright issues; with a political champion, this could change, making ACTA implementation (to say nothing of other copyright reforms) more difficult.

2. Mexico may also be starting to consider the economic and technological effects of copyright, rather than simply its cultural aspects. The same Senator made remarks to this effect in 2008.

3. The Senate Commission on Science and Technology is responsible for ISP-related issues, and ISPs have a lot of clout in Mexican politics: Telmex has a virtual monopoly on Mexican Internet access and is owned by Carlos Slim, the third-richest man in the world, according to Forbes.

Simply put, so far as Internet access issues are concerned, all roads to Mexican copyright reform and ACTA implementation run through Telmex. That Mexican ISPs and the content businesses and groups have been trying unsuccessfully for a couple of years now to come to an agreement on ISP liability (Mexico currently has no laws dealing with this issue) tells me that Telmex’s interests do not align directly with those of the copyright owners that have been behind the treaty.

In a sense, it might not matter much for Mexico what the ACTA requires: if it doesn’t make Telmex happy, then implementation will be a long, long time coming. Negotiating a treaty in secret may help get something signed, but if powerful interests are not listened to, they will, in the end, make themselves heard.

News flash: Canadian broadband great, says paper owned by ISP

I thought there was something off in the story in the Globe and Mail (a division of CTV Globemedia, owned in part by the same company that owns Sympatico) by Leonard Waverman and Kalyan Dasgupta about how Canadian broadband access isn’t as terrible relative to the rest of the world as OECD data and a recent U.S. Federal Communications Commission report makes it seem. (Yochai Benkler, the report's author, rebutted some of the criticisms four months ago.)

I’ve been looking at the same data they criticize. Yesterday, I finished a rough draft of my case study on the Mexican implementation of the WIPO Internet treaties. When I asked Mexican copyright experts (lawyers, government, industry folks) why the treaties had not yet been implemented fully, everyone pointed to low Internet penetration rates as being one of the main causes. Unauthorized downloads aren’t much of a problem when people aren’t online. It’s only been in the last couple of years, as Mexican Internet penetration rates have started to rise that groups like the International Intellectual Property Association (IIPA), a U.S.-based lobby group, have really begun to push for measures to combat unauthorized downloading (compare the language on “Internet piracy” in their 2009 and 2010 Mexico-related Special 301 filings with those of previous years).

Anyway. One of their first criticisms is that the data conflate household and business access, and when you include business broadband access, Canada fares much better, since proportionately more Canadians are employed by big businesses than elsewhere in the world.

I was pretty sure that the data I looked at didn’t do that. And, unfortunately for their argument, the OECD data actually don’t make such an elementary mistake. As Benkler and an eagle-eyed Globe commentator points out that the OECD actually does report a broadband access rate by household. And by that measure, as our intrepid commentator (Atreya) remarks, Canada is 7th and the U.S. 17th out of the 30 OECD countries (Mexico is in 29th place, just ahead of Turkey).

Last time I checked, ranking 7th in anything isn’t enough to let you brag that you’re leading the pack. Atreya also makes some good points about measuring download speeds, which I’ll leave to the experts to quibble about.

I’d add only two things.

1. Conflict of interest. Given that the Globe and Mail is owned in part by Bell Canada Enterprises (BCE), which also controls Bell Canada, which runs Sympatico, one of Canada’s two main Internet Service Providers, it’s shocking that this story ran without any kind of warning about the Globe’s conflict of interest. Absolutely shameful.

2. Where are the links? Since I’ve started writing this blog, I’ve been noticing how Canadian newspapers like the Ottawa Citizen, the Globe and Mail and the Toronto Star often don’t link to the reports and articles they cite. Even with columnists and reporters I trust, I want to verify what they’re talking about for myself. We’re far past the time when a newspaper could confer authority and legitimacy over everything in its pages by its name alone.

And when someone like me is able to find, in five minutes, a link to a four-month-old posting in which the author of the offending report rebuts the allegations put forward in this article (h/t Geist) and yet is not mentioned at all by the authors, it does nothing for the paper's credibility. And, no, calling it an opinion piece doesn't exempt the paper, editors and publishers from their journalistic responsibilities.

Note to publishers: these days, not linking to the documents you’re writing about is like writing an academic paper without providing footnotes.

It’s almost as if these companies don’t want to survive the transition to digitally delivered news.

In Mexico, creators and industry are getting together

Very interesting news here in Mexico. El Universal and others (all sources are in Spanish) are reporting that over 30 copyright-related groups are coming together to form the Coalición por el acceso legal a la cultura (Coalition for legal access to culture). According to composer and coalition co-president Armando Manzanero (rough translation): “We are uniting so that no one steals a song, a book or a picture, so that everyone pays royalties to the artists.”

What’s most significant is that this coalition unites artists’ collective societies and unions with those on the corporate side, such as the Asociación Productora de Fonogramas (the only industry group mentioned by name in the articles, though I understand from people I’ve talked with that the coalition basically includes everyone traditionally involved in copyright). Furthermore, it has the blessing of the two main government oversight bodies, INDAUTOR and IMPI, as well as the head of the main congressional oversight committee, la Comisión de Cultura de la Cámara de Diputados, Kenia López.

Generally speaking, the coalition favours stronger copyright laws (and enforcement). Their initial projects include working toward a copyright levy and a regime for ISP liability, since right now there is no specific Mexican law governing ISP liability. I also understand that they are interested in getting the government to enforce their copyright laws by granting them ex officio authority, meaning that the government would not have to wait for an infringement complaint to take action against suspected infringers. (I think this is the big one, since it moves the onus for enforcement from the private sector to the public sector and, thus, the taxpayer.)

Getting Ready for the Future

This coalition comes in advance of what will likely be a major reform of Mexican copyright law in a few years’ time. The last major reform to the Mexican Ley Federal de Derecho de Autor was in 1997, mainly (but not completely) to implement Mexico’s obligations under the North American Free Trade Agreement; it was modified in 2003, notably to increase the standard copyright term to a world-leading life of the author plus 100 years (at the request of Mexican authors’ groups – not all copyright reforms are driven by American industry).

The upcoming legislative battle will likely pit coalition members against Mexican Internet Service Providers, with the coalition wanting the ISPs to undertake some form of policing of their networks and the ISPs trying to minimize their legal obligations. Having a coalition allows these disparate groups to work out their differences (and there will be differences) in private before dealing with the ISPs, and to present a unified front to the authorities, giving their conclusions a lot of weight.

Issue Framing

The coalition is also a savvy move in the battle for control of how the issue is framed. In countries like Canada and the United States, there is a growing appreciation that artists and distributors/producers sometimes have conflicting interests when it comes to copyright. It is no longer identified solely with authors, but rather as a commercial right whose benefits accrue mainly to large corporations. In contrast, the Mexican copyright discourse is still dominated by the Continental idea of copyright (or, rather, derecho de autor – author’s right) and is seen as a tool for the protection of the national culture (whereas in Canada, the claim that copyright serves mainly foreign, i.e., American, interests, has a lot of currency). This narrative is reinforced by the role of collective societies as providers of social programs to artists and as their main representatives in the legislative process. Having all these groups under one roof reinforces the idea of copyright as an author’s right, rather than as a commercial right.

Getting Ahead of the Public

The coalition is also getting ahead of another group that has proven increasingly vocal in places like Canada: the user community. While the past several years have seen an astonishing politicization of copyright in Canada, there is to date no evidence of a similar groundswell in Mexico. (According to one of my interview subjects, this book, released in July 2009, was intended partly as a way to kickstart a public debate over copyright in Mexico.)

Part of this lack of interest can be attributed to the low level of Internet penetration in Mexico. This won’t always be the case, however; as more Mexicans go online, they are likely to become more aware of how they are affected by copyright law. In the face of a well-organized coalition, it will be harder for consumers to organize effectively.

At a time when many folks in the blogosphere are focused on the (admittedly important) Anti-Counterfeiting Trade Agreement (which should be made public, if only to allow for reasoned debate on the issue), the creation of this coalition is a reminder that copyright law, at the end of the day, is made and shaped domestically, not just internationally, and that stronger copyright protection is not necessarily only an objective of the American copyright industries.